A man has failed in his appeal against Fermanagh and Omagh District Council (FODC) and a control order given by its dog warden.

Stuart Johnston of Ports Road, Newtownbutler had been issued an order by the FODC dog warden to keep two of his dogs on a lead following an incident on May 5, 2022.

On the day in question, Kathleen Cheshire told the court she was attempting to moor her boat on her mother’s property when two dogs appeared close to the foreshore and began barking “aggressively” and “furiously” at her and her two dogs which were in the boat with her.

Forced to row back

She said due to the nature of the dogs she was forced to row back out into the middle of the River Erne before taking pictures of the dogs which she described as boxer type and a terrier.

Mrs. Cheshire said the whole incident lasted about four to five minutes and she was shouting at the dogs to get them away from the shore as she was afraid.

She said there was no other human in sight and photos she took which were submitted to the court confirmed this. The photos showed the boxer dog while Mrs. Cheshire said the terrier was in the rushes and could not be seen when taking the photos.

Mrs. Cheshire also confirmed she knew the dogs belonged to Johnston.

Mrs. Cheshire said she went to the police to report the incident two days later but it was closed, and she had to return. She was then advised to report it to the dog warden.

During cross-examination by Johnston’s barrister, Craig Patton it was confirmed Mrs. Cheshire did not report the incident to the dog warden until May 24.

Ongoing dispute

The cross-examination also centred around Mrs. Cheshire’s knowledge of the ongoing dispute at Ports Road over the erection of a barricade blocking access to Lough Erne.

She was aware of it and confirmed that she had been present at a protest outside Lisnaskea Police Station about it as well as knowing people who have been involved in court cases against the Johnston family. She also confirmed she had been down at the barricade on October 2 and had taken a picture of the wall surrounding the Johnston property.

Mr. Patton said all this background was central to the motive of why the complaint to the dog warden had been made while District Judge Steven Keown said he was concerned the court was being used to air grievances.

Mr. Patton also put it to Mrs. Cheshire that Johnston’s daughter, Sarah-Jane, was walking the dogs at the time and called the boxer dog back and the terrier, a Kerry Blue, was actually at her side.

Mrs. Cheshire replied: “I saw nobody at the time.”

She was also adamant that the dogs were on her mother’s property.

FODC dog warden, Edmund Mooney, confirmed he had received the complaint from Mrs. Cheshire and carried out an investigation.

He visited the location and spoke with the Johnstons, explaining the nature of the allegation. He said they denied it “strenuously”, said it was not true and the dogs were under the control of Sarah-Jane.

He decided that there was sufficient evidence and reasonable cause for control conditions on the two dogs and they needed to be on a lead.

Mr. Mooney confirmed to the court he had been called out to the Johnstons before about their dogs but nothing had come of those reports.

‘Constantly harassed’

Johnston then gave evidence and spoke about how his family were “constantly harassed and intimidated by these people” and they would “use anything as a stick to beat us with”.

Sarah-Jane Johnston also gave evidence and said she was walking the four dogs at the time but was in another field at the time of the incident, some distance away from it.

She denied the Kerry Blue had moved away from her and claimed the person on the boat had whistled for the dogs and the boxer responded.

She denied the dogs were acting ferociously and that she was in control.

Miss Johnston said there was an agenda against her family and suggested the pictures taken would have been done in such a way as to leave her out of them, even though she was in another field.

In their submissions, FODC barrister Connel Trainor said the Council’s perspective was if you “stripped back all of the investigation” and even the dispute over the land the reality is the dogs were straying.

He said the dog warden only had to show the court reasonable cause and the court has been shown the statements and photos which were a “deal breaker”.

Mr. Patton said he had issues with Mrs. Cheshire’s evidence and why she waited two weeks to report the complaint to the dog warden.

Mr. Patton contended that her evidence was unreliable due to her background regarding the dispute in the area.

He said there was a difference in having your dog on a lead in an urban setting compared to this rural setting.

Judge Keown said he had decided on the case “on the facts of this case and this case alone”.

He said he was satisfied the two dogs were present and not under anyone’s control and were straying on Mrs. Cheshire’s mother’s land barking and preventing her from landing.

He was satisfied the control order was proportionate and was with reasonable cause.

Johnston was also ordered to pay £200 in legal costs.